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Kelly, Loretta; Oxley, Elvina --- "A Dingo in Sheep's Clothing? The Rhetoric of Youth Justice Conferencing and the Indigenous Reality" [1999] IndigLawB 12; (1999) 4(18) Indigenous Law Bulletin 4


A Dingo[1] in Sheep’s Clothing? The Rhetoric of Youth Justice Conferencing and the Indigenous Reality

by Loretta Kelly and Elvina Oxley[ξ]

In the last decade there has been growing interest in diversionary conferencing for young offenders. Conferencing schemes aimed at diverting young people away from the criminal justice system are in operation throughout Australia.[2] The diversionary conferencing scheme for young offenders in New South Wales is known as youth justice conferencing and operates within the legislative framework of the Young Offenders Act 1997 (NSW) (‘the Act’).

Young offenders are eligible for conferencing if they commit an offence within the parameters of the Act[3] and make an admission of guilt.[4] The Act sets up a strategy for dealing with young offenders involving warnings, cautions and youth justice conferences.[5] Driving the scheme is the objective of increasing young offenders’ responsibility for their actions and reintegrating them into their communities.[6] It is a community-oriented scheme aimed at diverting young offenders away from the Court system.

The conference is facilitated by a conference convenor contracted by the Department of Juvenile Justice. During the conference, the young offender meets with the victim(s) and supporters, the young offender’s family, police and other relevant community members (such as a social worker or interpreter).[7] The result of the conference is an outcome plan agreed to by the young offender and the victim which sets out the actions that the young offender must take to repair the damage caused to the victim.[8]

Youth justice conferencing is administered through the New South Wales Department of Juvenile Justice. This department has created a separate directorate, the Youth Justice Conferencing Directorate, which is responsible for the coordination of the conferencing scheme. The directorate employs conference administrators to manage the implementation of the scheme at the local level. This administrative structure gives rise to the perennial question addressed in this article: how can a scheme designed, legislated and administered from ‘above’ and without meaningful contribution from the communities it is intended to serve, cater to the real needs of Indigenous communities?

This paper provides a critique of youth justice conferencing in New South Wales from the perspective of two Indigenous women who have been involved in the scheme on the mid-north coast of the State. We advocate ‘grass-roots’ contribution to policy development and implementation.

Principles and provisions of the Young Offenders Act 1997 (NSW) with the potential to ‘Indigenise’ youth justice conferencing

Foundation of conferencing

Youth justice conferencing in New South Wales has its roots in the New Zealand model of family group conferencing.[9] Family group conferencing is apparently derived from extensive consultation with Maori communities and reflects traditional Maori legal and cultural norms.[10] However, a conferencing process based on Maori traditions will not necessarily be effective in the Indigenous Australian context. Furthermore, a process that works for one local Indigenous community may not be appropriate for another community. The Act’s ‘one size fits all approach’[11] reflects an inadequate understanding of local, cultural and broader racial differences.

Cultural appropriateness

There are several sections in the Act that embody the policy objective of cultural appropriateness, but which are really superficial attempts to ‘Indigenise’ youth justice conferencing. Section 34(1)(a)(v) of the Act states that measures for dealing with children are to be designed to ‘be culturally appropriate, wherever possible.’ This is a considerate gesture! However, the logical converse of this proposition is that where it is ‘impossible to be culturally appropriate’, it is okay to be ‘culturally inappropriate.’ Although this might sound like a trivial argument in semantics, we believe that this type of legislative provision is indicative of the motives underlying the legislation. That is, to style the scheme for cultural appropriateness only when it suits the bureaucrats who ultimately control the scheme. All too often, ‘wherever possible’ actually means ‘whenever we can find the time and money’.

Racial ‘matching’

Section 34(1)(c)(iv) of the Act states that any measures for dealing with or imposing sanctions on children must take into account the race of the child. What this means in practice is that the conference administrator will attempt to match the race of a young offender with the race of a conference convenor. Recruiting Indigenous convenors is one way of Indigenising the scheme to make it more culturally appropriate. Recruitment drives for Indigenous conference convenors have generally been unsuccessful, resulting in a very limited pool of Indigenous conference convenors. Consequently, conferences for Indigenous young offenders are being convened mainly by non-Indigenous conference convenors. This is not culturally appropriate and results in further alienation of the offender rather than achieving the Act’s stated object of reintegration of the offender into the community.[12]

A common scenario in youth justice conferences is that of an Indigenous young offender and a non-Indigenous victim being convened by a single convenor, whose race matches the background of (usually) the non-Indigenous victim. The Act and policy guidelines do not provide for two people to convene a conference. The Act should specifically provide for a co-convenor model, so that the racial backgrounds of the conference convenors are matched to both the offender and victim.

A few Indigenous-identified positions have also been created for conference administrators in the Kempsey, Dubbo and Armidale regions. However, as the job title suggests, these are administrative/management positions which have little direct contact with young offenders and other conference participants.

The Act and the youth justice conferencing program were developed without adequate consultation with the communities on which they are imposed. This is viewed with suspicion by many Indigenous community members. The authors have received feedback from ‘grass-roots’[13] Indigenous people to the effect that youth justice conferencing is just another whitewash – yet another government program that does not involve the people for whom the scheme was designed.

Indigenous experts

There is a responsibility under the Act, when dealing with or imposing sanctions upon young offenders, to take into account their gender, race and sexuality. In mainstream western societies, those considered to have knowledge and experience in these social classifications are usually social workers, psychologists and sociologists. These experts are rewarded for their time with consultancy fees or salaries. Unlike the largely non-Indigenous professionals, grass-roots community members are expected to volunteer their services to youth justice conferencing and other government schemes, committees, panels and so on. These grass-roots people are the ‘aunties and uncles’ and elders who are often invited to seminars and are then ‘talked at’ while they sip their cups of tea! These people have the most knowledge and experience of Indigenous issues and can address our problems with discernment and wisdom. Yet their expertise is often ignored or rejected, or is appropriated without acknowledgment or payment.

The Act provides for the attendance at a conference of ‘a respected member of the community for the purposes of advising conference participants about relevant issues.’[14] Resources need to be made available to finance the participation of these elders/respected community members as advisers.[15] These people are rarely paid for the work they do within their communities and are often overburdened with the tasks of raising the children of relatives and volunteering for various committees. If the expertise of these grass-roots people is to contribute to the success of youth justice conferencing, then they must be paid as consultants, for they are the ones who are best able to provide on-going support to offenders and their families.

The proposed mentoring scheme in New South Wales makes another half-hearted attempt to engage such people with young offenders.[16] The mentoring scheme for young offenders will be piloted in two regions in New South Wales. This proposal is tacit acknowledgment of the inability of youth justice conferencing to provide the holistic outlook necessary to address the offending behaviour of young people. Unfortunately, the scheme will, yet again, rely on the efforts of volunteers. The funds made available for trialing the scheme will, if our experience proves correct, be consumed in administration and training. The mentor pilot is yet another mainstream scheme that will be imposed on Indigenous people. Once again the bureaucrats will be perplexed when they find it difficult to recruit Indigenous volunteers as mentors.

As outlined above, the strength, knowledge and experience of elders is often not recognised or recompensed. This is because they may not have the technical training or qualifications necessary to convene a conference under the Act. For example, an elderly ‘Aunt’ may have no driving licence, poor literacy skills, and feel intimidated by police. Surely such a person could still become a conference convenor if she were teamed with a younger, well-educated Indigenous convenor? Yet the Act and policy direction only allows for the conference to be convened by one person. There needs to be a more flexible approach to the role of convenor(s) so that these people are more directly and sustainably involved in conferencing with Indigenous young people.

Contemporary colonialism and Indigenous families

The horrific impact of colonialism on Indigenous societies is irrefutable. The social trauma caused by dispossession is seen in Indigenous communities today.[17] Indigenous individuals, families and communities struggle with the disempowering legacy of the policies of the Aborigines Protection Board every day. These experiences are within the living memory of Indigenous people. The stories, the pain, the anger are all passed on to each generation and are a fact that each generation must deal with in turn. O’Shane observes that:

Throughout Aboriginal society in this country are seen what can only be described by anyone’s measure as dysfunctional families and communities, whose relationships with each other are often marked by anger, depression and despair, dissension and divisiveness. The effects are generational.[18]

O’Shane argues that in order to overcome the impact of colonialism on Indigenous people as individuals, families and communities, its consequences must be ‘properly acknowledged, and addressed and due compensation made.’ The reasons behind the offending behaviour of our Indigenous young people are profound and complex. It relates to the systemic disadvantage resulting from the colonial legacies that continue to impact on the lives of Indigenous people. The effects of these legacies are generational, and with each new generation, are compounded. Understanding Indigenous young offenders’ behaviour in this light will give rise to holistic, multi-dimensional, approach which provides an avenue for the re-empowerment of Indigenous families.

In relation to conferencing and Indigenous young people, Cunneen raises his concern about the potential blaming of parents for juvenile offending. He states that the conferencing process may stigmatise Indigenous families as being uncaring, incompetent, failures, etc.[19] He argues that this ‘blaming’ of Indigenous families may ‘reinforce the perceived need for greater forms of bureaucratic surveillance and intervention.’[20] Cunneen’s concerns are based on a fear of history repeating itself. We argue, along with O’Shane, for acknowledgment of Indigenous realities and the causes of our present disadvantage, rather than hiding in sheep’s clothing. By acknowledging past and present truths we can begin to re-empower Indigenous families.[21]

Section 34(1)(a)(ii) of the Act states that measures for dealing with children are designed to ‘strengthen the family or family group of the child concerned.’ Section 7(e) of the Act provides the principle that young people ‘should be dealt with in their communities in order to assist their reintegration and to sustain family and community ties.’ However, when dealing with dislocated and disrupted families, ongoing support and resources are required in order to strengthen the family group.[22]

Police discretion and conferencing

Prior to her appointment as the director of youth justice conferencing in New South Wales, Jenny Bargen argued that given the discriminatory practices of police in relation to Indigenous young people,

...it seems to be unduly optimistic to expect that developments in conferencing in Australia will positively impact on Aboriginal communities without significantly greater input into their development from Aboriginal people themselves.[23]

There are volumes of research on the problematic ways police exercise their discretion in relation to Indigenous young people.[24] Under the Act, this problem emerges in relation to police discretion to refer young people to youth justice conferencing. There is an enormous potential for discrimination by police in relation to the role of gate-keepers, essentially controlling Indigenous young people’s access to conferencing.[25]

Arguably, the discretionary power of police in referring Indigenous youth to conferencing is curbed by the Courts’ power to refer young offenders who may have ‘fallen through the net’ of the Act because of police discrimination.[26] Nevertheless, the issue of police discretion and discrimination in the exercise of their discretionary powers must be addressed in order to reach a better compromise between flexibility (which can result in too much police discretion, as is presently the case) and firmer policy guidelines (with a resulting decrease in flexibility).[27]

Conferencing and the continuing lack of community consultation

It has been argued that extensive consultation was undertaken with ‘Aboriginal organisations and Aboriginal youth workers’ as part of the process for establishing youth justice conferencing in New South Wales.[28] In fact, a proposal for conferencing in New South Wales was developed and the proponents of the scheme then sought the (token) approval of workers in Indigenous organisations.[29] The process through which this approval was sought went something like this: a group of Indigenous juvenile justice workers and the heads of several Indigenous organisations were lectured by the non-Indigenous developers and proponents of the scheme.[30] Sadly, this is a common example of the ‘top-down’ approach to Indigenous community development.

What is required is grass roots consultation - ‘bottom-up’ - community development - to ensure that local cultural, social and financial needs are met. We acknowledge that there is often ongoing conflict between different family groups and that subsequently there can be a number of differing views within the one community. However, effort must be made to identify these community dynamics and obtain a representation of the different views. All too often, the wisdom of communities is not sought, or is disregarded by the bureaucrats who seek to find a quick fix to difficult and complex problems.

Practical, grass-roots programs need to be put in place to ensure that the measures for dealing with young offenders are ‘culturally appropriate’. These programs must be developed, ‘owned,’ and controlled by Indigenous people. This will require a redirection of resources to ensure that culturally appropriate programs can be developed to cater to the real needs and take into account the racial background of our children.

As it is now, conferencing merely wears the clothing of cultural appropriateness but underneath it is still a dingo – ‘a coward who shirks its responsibilities’.[31] The Act is due for review in 2000.[32] The New South Wales Government will undoubtedly make an immense effort to involve, and indeed focus on, Indigenous people and our culture in the Olympic Games. But will there be a similar commitment to the involvement of Indigenous people in youth justice conferencing by harnessing the strength and knowledge that currently exists in Indigenous communities? If they are to do so, bureaucrats must begin to acknowledge the difference between top-down and bottom-up strategies of consulting, legislating and implementing policy.

There must be recognition of the need for local Indigenous consultants, advisers and mentors to fill the gap created by imposed governmental structures. Once resources are channelled towards harnessing local Indigenous strength, we may begin to realise the potential of youth justice conferencing. Its easy to throw a sheepskin over a dingo, but it takes time and effort to domesticate it.

Loretta Kelly is an Indigenous woman from the Gumbaynggirr and Dungutti language groups of the mid-north coast of NSW and was a former youth justice conference administrator (Kempsey Region). Elvina Oxley is an Indigenous woman from the Birapai tribal group of the mid-north coast of NSW and is a youth justice conference convenor.


[1] The authors acknowledge that the dingo is totemic for some Aboriginal people. We do not intend to cause offence by this figurative use of the dingo. We have Australianised the old adage ‘a wolf in sheep’s clothing’ and by doing so slightly altered its meaning. One definition given by the Macquarie Dictionary on CD-ROM for ‘dingo’ is ’one who shirks responsibility or evades difficult situations.’

[ξ] The authors wish to thank Antony Barać (BCOM, LLB, GRADDIPLEGPRAC, GRADDIPED) for his invaluable comments and editorial assistance.

[2] For example: Young Offenders Act 1994 (QLD), Young Offenders Act 1993 (SA), Young Offenders Act 1994 (WA). For an overview, see Cunneen C, ‘Community Conferencing and the Fiction of Indigenous Control,’ (1997) 30(3) The Australian and New Zealand Journal of Criminology 292.

[3] Young Offenders Act 1997 (NSW), s 8. This includes summary offences and indictable offences that may be dealt with summarily. Excluded are offences such as those resulting in the death of any person, sexual assault offences and breaches of apprehended violence orders.

[4] Id, s 10.

[5] Space does not permit a thorough description of the policy background, legislative provisions and practical implementation of the Act. For further information, see Grant B, ‘The Young Offenders Act 1997: A Paper for the Judicial Commission’s Children and the Law Seminar Series,’ 23 September 1997. Further information can be obtained from: Youth Justice Conferencing Directorate, NSW Department of Juvenile Justice, PO Box K399, Haymarket NSW 1240, Ph: (02) 9289 3333.

[6] The underlying philosophy is that of restorative justice. See Blagg H, ‘Restorative Visions and Restorative Justice Practices: Conferencing, Ceremony and Reconciliation in Australia,’ (1998) 10(1) Current Issues in Criminal Justice 5.

[7] Op cit n 3, s 47.

[8] Id, s 52.

[9] Family group conferencing commenced in New Zealand following the introduction of the Children, Young Persons and their Families Act 1989. Cunneen, op cit n 5, p 2; Bargen J, ‘Kids, Cops, Courts, Conferencing and Children’s Rights – A Note on Perspectives[1996] AUJlHRights 5; ,’ (1996) 2(2) Australian Journal of Human Rights 209, p 209.

[10] Op cit n 2, p 293.

[11] Ibid.

[12] We acknowledge that some Aboriginal young offenders may prefer a non-Aboriginal Convenor, and this should be respected. However, the reason for this preference is often because of fears of bias in an Aboriginal Convenor (because of inter-family disputes). This situation is exacerbated by the limited pool of Aboriginal Convenors.

[13] When we use the term grass-roots we are referring to those Aboriginal people who are (generally) without any paid positions of authority. They have lived in the Aboriginal community all of their lives and are often disempowered through imposed structures.

[14] Op cit, n 3, s 47(2)(a).

[15] Jenny Bargen, commenting on the New Zealand scheme, argues that any inappropriateness of conferencing for Maoris ‘may be resolved ... by making available resources for flexible, culturally sensitive implementation.’ Bargen, op cit n 9, p 212.

[16] See: Attorney General’s Department (Crime Prevention Division), Young Offenders Mentoring Project: Pilot Project Specification, December 1998.

[17] O’Shane P, ‘The Psychological Impact of White Settlement on Aboriginal People,’ (1995) 19(3) Aboriginal and Islander Health Worker Journal 24, p 26.

[18] Id, p 27.

[19] Cunneen, op cit n 2, p 303.

[20] Id, p 304.

[21] See: Human Rights and Equal Opportunity Commission, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, (1997) AGPS, Canberra.

[22] Furthermore, in some cases it may be impossible to retain links between the family and the offender, or indeed such links may be counter-productive to the re-integration of the offender into community life.

[23] Bargen J, ‘A Critical View of Conferencing,’ (1995) 28 The Australian and New Zealand Journal of Criminology 100, p 100.

[24] Op cit, n 2, p 299.

[25] Op cit, n 3, s 37.

[26] Id, s 40.

[27] While a conference administrator, Loretta Kelly received feedback from police youth liaison officers who acknowledged the problems with police discretion and advocated firmer guidelines for referral of young offenders to conferencing.

[28] Op cit, n 5, p 2.

[29] ‘Face to face consultations also took place [with various bodies] ... [who] expressed general support for the proposal.’ (Grant, op cit n 5, p 2). This implies that consultation took place after the proposal was developed – where was Indigenous input at the initial stages?

[30] The authors have been given this information by several Aboriginal juvenile justice workers, who prefer to remain anonymous for fear of disfavour in the eyes of Department heads.

[31] See above, n 1.

[32] Op cit, n 3, s 76.


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